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Teachers union challenges ‘gag order’

New York’s major teachers union sued the state Education Department late Wednesday, challenging whether the state’s “gag order” on educators who score or administer Common Core-based tests is constitutional.(Photo: Shutterstock)

Story Highlights

The union argues that the state is infringing on teachers’ First Amendment right to free speech and 14th Amendment right to equal protection under the law

The five teachers listed as plaintiffs helped score the 2014 standardized tests and were required to sign agreements

The gag order on teachers has become the subject of controversy in some school districts

– ALBANY – New York’s major teachers union sued the state Education Department late Wednesday, challenging whether the state’s “gag order” on educators who score or administer Common Core-based tests is constitutional.

The New York State United Teachers union filed the lawsuit in federal court on behalf of five teachers -- including four from the Spencerport Central School District in suburban Rochester -- in an attempt to have the state-mandated confidentiality agreements thrown out.

The union argues that the state is infringing on teachers’ First Amendment right to free speech and 14th Amendment right to equal protection under the law by restricting them from discussing their concerns about specific questions on standardized tests. Under state law and policy, discussing the material on the exams is a punishable offense.

“If teachers believe test questions are unfair or inappropriate, they should be able to say so without fear of dismissal or losing their teaching license,” NYSUT President Karen Magee, the former head of the local teachers union in Harrison, Westchester County, said in a statement.

The state Education Department, which has faced criticism for the implementation of the tougher learning standards known as the Common Core, began issuing exams based on the standards in 2013.

That year, the state began withholding some field-tested questions on grade 3-8 tests from the public after the standardized exams were administered and graded, arguing that it was an issue of cost. By keeping the questions private, it allowed them to be reused on future tests.

The lawsuit, however, says the confidentiality agreements and threat of punishment for revealing information on the exams is unconstitutional. The five teachers listed as plaintiffs helped score the 2014 standardized tests and were required to sign agreements that said they would “not use or discuss the content of secure test materials, including test questions and answers, in any classroom or other activities.”

A spokesman for the state Education Department declined comment on the litigation, but said the state’s testing system is “among the most transparent in the country.”

Amid pressure from teacher and parent groups, the state released 50 percent of the questions on 2014 elementary- and middle-school tests – double what was released the previous year -- and all of the Regents exam questions that weren’t being tested in the field.

Dennis Tompkins, the spokesman, said the department has “repeatedly requested additional funding” from the state Legislature to print more versions of the exams, which he said would allow the state to release more questions publicly. The state currently prints its exams in-house in Albany and can only produce four distinct versions of each exam.

"Obviously, items to be used on future tests must be kept secure,” Tompkins said in a statement. “We look forward to NYSUT's vigorous support for our budget request.”

The gag order on teachers has become the subject of controversy in some school districts, including Spencerport, where an online petition drive calling on the Education Department to release the entire exams garnered more than 5,500 signatures earlier this year. Parents and a teachers group argued that shielding some questions from public view doesn’t allow for proper scrutiny of the tests.

The Spencerport Central School District was also listed as a defendant in the lawsuit.

A similar “Release the Tests” drive was held in Hastings-on-Hudson, Westchester County, where parent groups submitted more than 3,000 emails to state officials this past spring.

The lawsuit was filed in Albany federal court Wednesday evening, but it wasn’t immediately clear if it had been served on state Education Department officials.

“Teachers must be free to protect their students and speak out when they have concerns about state tests,” Magee, the union president, said. “Instead, they are under a ‘gag order’ to be silent — and that is hurting children.”